01986664
02-28-2001
Judith R. Volkmar, Complainant, v. William A. Hatler, Acting Commissioner, Social Security Administration, Agency.
Judith R. Volkmar v. Social Security Administration
01986664
February 28, 2001
.
Judith R. Volkmar,
Complainant,
v.
William A. Hatler,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01986664
Agency No. 0579-91
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated August 7, 1998, finding that it was in compliance
with the terms of the November 8, 1993 settlement agreement into which the
parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The [agency] will reassign [the complainant] to the next available
permanent vacancy in the position of Supervisory Social Insurance Claims
Examiner [Ret.] Process Module Manager, GS-993-12 (herein after referred
to as the �Module Manager position�), or, in the event such position is
abolished, in the surviving functional equivalent thereof, in Processing
Center Operations.
By letters to the agency dated January 13, 1994 and January 21, 1994,
complainant, through her attorney, claimed that the agency failed
to comply with the above provision, as well as two other provisions
providing for a lump sum payment to complainant as well as an award of
attorney's fees. It appears that the agency thereafter complied with
these latter two provisions.
By letter to the agency dated June 10, 1997, complainant, through
her attorney, again claimed that the agency had not yet complied with
the above referenced provision, noting that two qualifying vacancies
had been filled since execution of the settlement agreement, although
complainant had yet to be offered a suitable position. The agency
responded, in a letter dated August 8, 1997, denying that a permanent
vacancy in the Module Manager position had occurred since execution of
the settlement agreement. The letter further indicated that due to a
subsequent reclassification of the Module Manager position to a GS-13,
it would not be possible to reassign complainant to that position.
Instead, the agency offered to discuss other GS-12 reassignment options
with complainant.
By letter to the agency's �Fraud Hotline,� dated March 25, 1998,
complainant again alleged, in pertinent part, that the agency had not yet
complied with the above referenced provision of the settlement agreement.
Specifically, complainant indicated that the agency had violated the
agreement by filling two suitable permanent Module Manager positions,
but would only offer her a GS-13 Module Manager position as a temporary
reassignment.
With reference to the March 25, 1998 letter, the agency issued a final
decision finding that it complied with the settlement agreement. First,
the agency determined that complainant's Assistant Module Manager GS-11
position had been upgraded to a GS-12 prior to execution of the settlement
agreement, while the GS-12 Module Manager position had been �abolished�
via an upgrade to a GS-13 after execution of the settlement agreement.
Consequently, the agency found that complainant's current GS-12 Assistant
Module Manager position was the �surviving functional equivalent� to the
GS-12 Module Manager position. Second, the agency stated that it never
intended to place complainant in a GS-13 position as a remedy, and that
to do so would overcompensate her. As evidence of this intention, the
agency argues that its use of the term �reassignment� in the provision
denotes placement in a position having the same grade currently held�-in
this case a GS-12. Third, the agency denied that any qualifying permanent
vacancies had occurred, and that only temporary vacancies had been filled.
The agency noted that complainant declined all offers of temporary
assignments to GS-13 Module Manager positions.
On appeal, complainant argues that the rationale for the provision
at issue was an award of a promotion, and the agency's position that a
reassignment to another GS-12 position reflected the intent of the parties
is untenable. Complainant additionally argues that offers of temporary
assignments do not satisfy the terms of the provision at issue, which
clearly and unequivocally mandates complainant's placement into a
permanent position.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
The provision at issue mandates complainant's placement in a certain
GS-12 Module Manager position, or its �functional equivalent.� The
agency argues that this position was in essence �abolished� when it was
upgraded to a GS-13 in September 1995. The record reflects, however,
that the �newly created� GS-13 position is otherwise the same position
referenced in the provision. Furthermore, we note that prior to the
execution of the subject agreement, complainant's position as Assistant
Module Manager was upgraded to the GS-12 level, suggesting that the
upgrade of the Module Manager's position was anticipated at that time.
Based on the plain meaning of this provision, the Commission determines
that the September 1995 GS-13 Module Manager positions are the �functional
equivalents� of the pre-September 1995 GS-12 Module Manager positions
referenced in the provision. We are unpersuaded by the agency's argument
that the term �reassignment� denotes only a transfer to a position of
the same grade. The agency provides no authority for this interpretation.
To the extent that the agency interpreted the provision in this manner,
such an interpretation should have been reduced to writing as part of the
settlement agreement. See Jenkins-Nye v. General Services Administration,
EEOC Appeal No. 01851903 (March 4, 1987).
Finally, the agency argues that no permanent Module Manager positions
have become available since the time the settlement agreement was
executed, and did not anticipate that any would ever become available
because of the mandate to downsize its management staff. Therefore,
in an effort to satisfy this provision, complainant was offered a
GS-13 Module Manager position as a temporary assignment. [August 3,
1998 settlement attempt and draft amendment to settlement agreement]
Complainant consistently disputes the agency's claim regarding the lack
of suitable vacancies, contending instead that at least two permanent
Module Manager vacancies were filled in 1997, by others instead of being
offered to her. In her March 25, 1998 letter to the �Fraud Hotline,�
complainant more specifically contends that the agency created three
permanent Module Manager vacancies in 1997. The agency told complainant
not to apply for these positions because she would be awarded one under
the terms of the settlement agreement. Instead, however, complainant
contends that two of the vacancies were filled as permanent positions,
but complainant was offered only a temporary assignment under the third
�vacancy.� Therefore, not only was she denied the promised vacancy as
a permanent position, but she was also precluded from the opportunity
to apply for these vacancies along with the other candidates.
Notwithstanding the agency's claim to the contrary, we find that
complainant's statements in the March 25, 1998 letter to the �Fraud
Hotline,� as set forth above, to be detailed and credible. Moreover, we
note that the agency has submitted no documentary evidence to challenge
this account. Accordingly, we find that by failing to place complainant
in one of the Module Manager vacancies which occurred in 1997, as a
permanent position, the agency breached the provision of the settlement
agreement at issue.
The Commission exercises its discretion and orders the agency to
specifically comply with the settlement agreement provision at issue,
by placing complainant in a permanent GS-13 Module Manager position and
to pay attorney's fees and costs incurred by complainant in seeking
compliance with this term of the settlement agreement. Accordingly,
based on our determination that the agency breached the settlement
agreement, we REVERSE the agency's decision that it complied with the
above referenced provision of the settlement agreement, and we REMAND
the case to the agency for action as set forth in the ORDER below.
ORDER
1. The agency is ordered to immediately place complainant in a permanent
GS-13 Module Manager position, or comparable position. The agency must
provide complainant with all personnel documentation implementing this
promotion.
2. The agency is ordered to pay all attorney's fees and costs incurred
by complainant pursuing the enforcement of the settlement agreement,
including this appeal, regarding the agency's breach of the provision
at issue.
The agency must provide the Commission with evidence of its compliance
with this Order, as referenced below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.